A legal expert told us the law does not require Bannon to be confirmed by the Senate to sit on the National Security Council Principals committee.

CLAIM

RATING

ORIGIN

On 30 January 2017, PalmerReport.com published a story that said President Donald Trump could not place his top strategist, Steve Bannon, on the National Security Council Principals committee without a Senate confirmation hearing.

The post came after the White House brought on a storm of controversy by removing ranking military and intelligence officials from the committee and placing Bannon (a controversial political operative) on it instead:

When Donald Trump decided that fake-news publisher and alt-right nazi Steve Bannon would be his White House Chief Strategist, he presumably chose that role so that the overwhelmingly controversial Bannon wouldn’t have to go through Senate confirmation hearings, which would have been a firestorm for the ages. But now that Trump has subsequently also picked Bannon for the National Security Council, it turns out he’ll be unwittingly feeding Bannon to the Senate wolves after all.

According to section (a)(6) of federal statute 50 U.S. Code 3021, a civilian like Steve Bannon will in fact need to go through Senate confirmation and approval in order to serve on the National Security Council because he doesn’t fit into any of the five listed pre-approved categories. That obscure law, which has remained obscure because no president has ever tried to put a political hack on the NSC until now, was dug up by MSNBC analyst Jonathan Alter late on Monday night. This sets up a remarkable showdown if Trump goes ahead with the Bannon pick, because few in either party have shown any affinity or trust for the guy – and they’ll have limitless material for embarrassing him.

Alter did write a “breaking news” tweet citing a law that dictates the make-up of the National Security Council.

While the law lays out the National Security Council’s (NSC) structure, it does not dictate who may sit on the Principals committee; in fact, it doesn’t mention the committee at all. The NSC was formed in 1947 (described as a “Cabinet-level group of agencies focused on national security) while the Principals committee was established by President George H. W. Bush in 1989. Traditionally the committee has been apolitical, consisting of members who are senior military and intelligence personnel:

U.S. Code 50, section 3021, defines the members of the council as the president, vice president, secretaries of state, defense, energy and “the Secretaries and Under Secretaries of other executive departments and of the military departments, when appointed by the President by and with the advice and consent of the Senate, to serve at his pleasure.”

Trump’s executive order, like directives issued by President Barack Obama and others before him, changes the makeup of the Council.

Unlike Obama, however, Trump specifically added both his chief of staff Reince Priebus and his chief strategist, Bannon, as regular attendees to the principals committee — described in the memorandum as “the Cabinet-level senior interagency forum for considering policy issues that affect the national security interests of the United States” — not to the National Security Council or the Homeland Security Council.

While placing Bannon on the NSC has no doubt been controversial, Harvard Law Professor Larry Tribe said there is no reason to believe Bannon needs to go before the Senate first, telling us in an e-mail that:

[N]othing in the Constitution or in any Act of Congress makes membership in what has been called the Principals Committee, which is formally and structurally not part of the National Security Council but an advisory group hitched to the Council by an invisible cord, a position that mandates the Senate’s advice and consent.

President Trump’s memorandum both adds Bannon (the chief strategist) to the Principals committee and designates him an invitee to any NSC meeting:

The Assistant to the President and Chief of Staff, the Assistant to the President and Chief Strategist, the Counsel to the President, the Deputy Counsel to the President for National Security Affairs, and the Director of the Office of Management and Budget are invited as attendees to any NSC meeting…

The PC shall have as its regular attendees the Secretary of State, the Secretary of the Treasury, the Secretary of Defense, the Attorney General, the Secretary of Homeland Security, the Assistant to the President and Chief of Staff, the Assistant to the President and Chief Strategist, the National Security Advisor, and the Homeland Security Advisor. The Director of National Intelligence and the Chairman of the Joint Chiefs of Staff shall attend where issues pertaining to their responsibilities and expertise are to be discussed. The Counsel to the President, the Deputy Counsel to the President for National Security Affairs, and the Director of the Office of Management and Budget may attend all PC meetings.

Jordan Brunner notes in LawFareBlog that the wording is important in determining whether Bannon needs a Senate confirmation hearing or not:

But Bannon isn’t on the NSC; as mentioned above, he is merely an “invitee.” Considering the control Bannon apparently wields, that may seem like a distinction without a difference, but the President is allowed to “invite” anyone he wants to attend NSC meetings—there is no requirement that these “invitees” be confirmed.

Bannon’s other role is more formal. He is a “regular attendee” of the Principals Committee. The Principals Committee is the “Cabinet-level interagency forum for considering policy issues that affect national security.” But nothing in the National Security Act dictates who sits on the Principals Committee…

White House Press Secretary Sean Spicer said the precedent for including political operatives on the NSC committee was set by President Barack Obama, when he put Bannon’s counterpart, David Axelrod, on the committee.

Axelrod countered that he was an observer, not a formal member of the Principals committee, unlike Bannon:

I was not a member of the committee. I did not speak or participate. I sat on the sidelines as a silent observer with Gibbs because we would be called upon to publicly discuss the president’s decision on that critical matter and the process by which he arrived at it.

We knew our presence chagrined some of the principals but, acting on the president’s instructions, we were there to gain a thorough understanding of what would be one of the most important judgments he would make as commander-in-chief.

Our access also came with limits. We were barred from some of the most sensitive meetings on the Afghanistan-Pakistan policy review so as not to inhibit discussions.

Beyond that, Gibbs and I did not attend regular meetings of the NSC Principals committee or their deputies nor were we invited to weekly meetings on terrorist threats.

It appears unlikely that Bannon needs to be confirmed by the Senate to sit on the Principals committee of the National Security Council or attend meetings as an invitee — but what is clear is that President Trump’s reshuffling of the body has stirred controversy and is in many ways unprecedented. The announcement caused former National Security Advisor Susan Rice to tweet it was “stone cold crazy.”

Tribe said Bannon’s role is “crazy and dangerous,” but it doesn’t seem to violate any law, “though it probably should.” Per CNN Politics:

To date, every version of the Committee has included the Joint Chiefs chairman and the director of the CIA or, once it was established, the head of the DNI. DNI James Clapper was always included in Obama administration’s NSC principals’ meetings, CNN confirmed.

Bannon’s presence reinforces the notion he is, in essence, a co-chief of staff alongside Chief of Staff Reince Priebus, and demonstrates the breadth of influence the former head of Breitbart News has in the Trump administration.

On 30 January 2017, after a media firestorm, the White House announced President Trump will reinstate the CIA director as a regular Principals committee member, while still keeping Bannon on board.

Meanwhile, the director of national intelligence and the chairman of the Joint Chiefs of Staff will still not be regular attendees but will attend when “issues pertaining to their responsibilities and expertise are to be discussed.”